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FURTHER:Note
The NOTE on the Opinion of Michael Shrimpton [Barrister], on the
position regarding weights and measures is published below in full.
The ‘NOTE’ on the Opinion was obtained by Jeffrey Titford MEP [UKIndependenceParty]
And supplied free of further fee by: Michael Shrimpton [Barrister]
The ‘NOTE’ on the Opinion was converted to electronic format by
Greg@GlanceBack.demon.co.uk(Greg Lance-Watkins) [e&oe]
This opinion is made freely available to anyone who wishes to use it
to defend themselves against the European Union’s laws regarding
weights and measures or any action that their aparachicks may take to
enforce their laws on the British peoples, in this matter, with or
without the assistance of their effective subsidiary, the Parliament
at Westminster.
It must be stressed that this is the qualified opinion of a barrister,
Michael Shrimpton [Barrister], and Jeffrey Titford MEP [UKIP], Messrs.
Bennett (Solicitors) or their agents or employees can not be held
responsible for any consequential damages relative to this
‘opinion’.
In re The Weights and Measures Act l985 In re The Law of the
Constitution
1. This note is further to my written opinion dated 22nd. December
1999 and the letter with enclosures from those instructing me dated
7th. January 2000. The enclosures include a series of ‘e’ mails (I
understand that my opinion has been published on the Internet) from
members of the public on which I comment below. I have endeavoured to
deal as fully as I can with the points made and the startling
developments since my opinion was written. Inevitably this note is a
little longer than is usual with a supplementary note from counsel. I
apologise to those instructing me for the number of typing errors in
the original copy and I trust that they have now received the
perfected copy, which I would ask them to treat as definitive (a copy
should be supplied to any public body considering my advice in place
of the earlier draft). I have not re-dated the opinion as there is no
material alteration, save for slightly more emphatic language on the
effect in law of a split result, which on mature reflection would
leave the prosecution in an untenable position. I have instructed my
clerk not to issue a fee-note in respect of this note. I do not
propose to reply separately to those (including Mr. Spreadbury) who
have been kind enough to send electronic correspondence, but I have no
objection to this note being published on the Internet (it is entirely
a matter for those instructing me). I an of course aware of the bitter
controversy which the proposed prosecutions have created and the
interest generated by the first great clash (bearing in mind the
secretary of State's cave-in in Factortame) between
Parliament and the legislative organs of the European Community since
the accession of the United Kingdom to the Treaty of Rome.
2. I am now shown what pretends to be an enforcement
notice issued by the Southend-on-Sea Borough Council, seeking to
prevent a butcher from selling sausages etc. by the Imperial pound. I
can only describe this notice, issued directly contrary to law, as an
outrageous assault upon the Liberties of parliament and the subject.
There is nothing in this unhappy document which persuades rite to
alter ny view in any way. The trading standards authority have
embarked upon a frolic of their own making and at ratepayers expense
too. It is not the case, as has been suggested to me, that the courts
would order an absolute discharge in the event of prosecution - they
would not be entitled to convict at all for conduct which is
sanctioned expressly by Parliament. An English court (it is not a
matter for any other court) would be obliged to acquit and should
waste the prosecution in costs for gross constitutional misconduct.
3. My attention has been drawn to a public statement by a trading
standards officer in the West Country. Evidently labouring under the
delusion that it is possible to entrench an Act of Parliament this
official has opined that traders selling in Imperial measures are
seeking to place themselves above the law. The true position is that
traders continuing to sell in Imperial are complying with the law as
laid down by Parliament. The only defiance of the law in the matter is
on the part of trading standards officers enforcing metric
measurements against the will of Parliament. I fear that my opinion
may not have been sufficiently clear and unambiguous and I now seek to
develop the point further.
4. In addition to the texts on statute law referred to in
my opinion I draw attention to the following statement in Bennion,
Statute Law, at 205:
If there is inconsistency between two Acts, the later prevails.
With respect that is correct.
5. My attention has been drawn to a surprising statement
in Cross on Statutory Interpretation, 3rd ed., at 116-117, relying
upon obiter of Nicholls LJ in Re Marr (A Bankrupt) [1990] Ch.
773 at 784 [1990] 2 All ER 880 at 882 casting doubt upon the Doctrine
of Implied Repeal. This statement is contrary to that in the 2nd ed.
(at 115) where the law is correctly stated, albeit not with the
clarity of Maxwell, Dicey or Bennion. Normally the editors of a legal
textbook, not least one carrying a name as distinguished as that of
the late Sir Rupert Cross DCL FBA, draw attention to departures from
previous editions, particularly where they place a new interpretation
on previously cited caselaw. With the utmost respect I do not know why
the authors of the 3rd. edition chose not to refer to the 2nd.
edition, nor why they have suppressed any mention of the binding
caselaw on Implied Repeal referred to in other, more reliable, texts
and cited in my opinion. It is to be hoped that these errors in
scholarship will be corrected in the 4th. edition.
6. Re Marr (a Bankrupt) was nothing to do with the
Doctrine of Implied Repeal. The Court of Appeal were there faced with
construing s.271 of the Insolvency Act 1986, scarcely a masterpiece of
precision drafting, since sub-section (1) conflicted with subsection
(2A). As one of three reasons for preferring subsection (2A) and
upholding Mr. Registrar Pimm, Mervyn Davies J. relied on the rule of
last resort in Wood -V- Riley (1867) LR 3 CP 26, whereby the later of
two repugnant sections within the same Act is preferred. Correctly the
Court of Appeal construed the Act as a whole and applied the rule set
out by Lord Herschell LC in Institute 0f Patent Agents V Lockwood
[1894] AC 347 at 360, whereby the court determines which is the
leading and which is the subordinate section, giving effect to the
intention of Parliament. Badly drafted though it was, it was tolerably
clear that s.271(1) was dominant.
7. Unhappily (with respect) Nicholls LJ went on to make an
obiter remark (at 784), rightly criticised in Bennion, Statutory
Interpretation (2nd. ed. at 810), to the effect that the
Leqes Posteriores Rule was obsolete. Here the learned judge with
respect fell into patent error because the court was construing one
statute not two and the Leges Posteriores Rule was nothing to the
point. Had counsel cited Bennion the mistake would not have been made
- he places the rule in Wood V Riley in a different section (Part XXV,
Section 3~5) to the Leges Posteriores Rule (Part IV, Section 87). All
sections of an Act of Parliament become law at the same time unless
otherwise specified. Not only is the obiter comment of Nicholls LJ
(obiter because the two sections were not repugnant and Lord
Herschell's rule could be applied) of no relevance to Implied Repeal
but I agree with Bennion that the rule in Wood V Riley survives as
good law. In the rare case where two sections in a statute really
cannot be reconciled and where neither is dominant the courts should
continue to apply the section nearer the end, not because one became
law later than the other but merely as a convenient rule of thumb, the
justification being the principle of legal certainty.
8. Nicholls LJ (again with respect) also fell into error
in describing the purposive rule of construction as modern. It was set
out in Heydon's Case (1584) 3 Co Rep 7a, was well-known to the judges
who have applied the Doctrine of Implied Repeal over the centuries and
is of absolutely no assistance at all in construing the Weights and
Measures Act l985, the purpose of which was "to consolidate
certain enactments relating to weights and measures." Whether a
literal, restrictive or purposive construction is applied the words
"the yard or metre shall be the unit of measurement of length and
pound or the kilogram shall be the unit of measurement of mass (s.l(l)"
mean precisely that and no more. There is no mechanism known to the
law of England or to the English language whereby the unqualified
words "the yard or the metre" (note that the Imperial
measure comes first) and "the pound or the kilogram" mean
the “the metre only” or "the kilogram only."
9. The constitutional importance of Implied Repeal, is
well i1lu~trated by R -V- Secretary of State for the Home Department
ex p Burke (QBD, CO/2750/98), referred to in my opinion at paragraph
14. I have now had the opportunity of studying the transcripts of the
judgments in both courts, for which I am grateful to the Applicant.
Both Popplewell J at first instance (2nd. October 1998) and the Court
of Appeal (Peter Gibson, Henry and Morritt LJJ, 8th. March 1999) on
renewal of the application for leave to move for judicial review
applied the Doctrine of Implied Repeal to the Bill of Rights 1688. Had
they not done so i~ would have been open to the Ulster Volunteer Force
and others to challenge the firearms legislation in force in Northern
Ireland on the basis that their right as Protestants to bear arms on
the terms set out in Article 7 of the Bill of Rights (which extends to
Northern Ireland) had been violated. A clearer demonstration of the
constitutional importance of not fettering Parliament with a doctrine
permitting entrenchment or limitation of statute could not be
imagined,
10. Mr. Burke (whose courtesy to the Court was acknowledged by
Peter Gibson LJ and whose good faith in the matter was not in doubt)
was a responsible owner (I think a police officer) of two small-bore
pistols, of which he was deprived by the Firearms Act 1997, passed as
Henry LJ acknowledges (transcript, p2) in the aftermath of the
cold-blooded murders at Dunblane on 13th. March 1996. He argued inter
alia that the Bill of Rights was entrenched and that the Firearms Act
1997 violated his right as a Protestant to bear arms.
11. That was not right with respect because the parliament of
1688 could not bind its successors. The absence of express words of
amendment or repeal was immaterial just as the absence of
express words of repeal in the weights and Measures Act 1985 is
immaterial. Popplewell J says this (transcript, p1):
It is not in dispute that the Bill of Rights gave the citizen the right to hold arms. The question which is posed is whether the Firearms Act, which does not expressly repeal the Bill of Rights, should be taken implicitly so to have repealed. The general position in law is this. where a later enactment does not expressly repeal an earlier enactment which it has power to override, but the provisions of the later enactment are contrary to those of the earlier, the latter by implication repeals the earlier. (emphasis added)
12. The learned judge did not qualify his manifestly correct (with
respect) statement of the general law by restricting the rule to
statutes other than the European Communities Act 1972, The Court of
Appeal correctly upheld Popplewell J, Henry LJ (with whom the other
distinguished members of the Court agreed) says this, having remarked
that the right to bear arms was qualified even in1688:
the submission (Bill of Rights?) is not entrenched; that is to say, what the law makes, the law can unmake.(transcript, p5, emphasis added). There is no comfort in these judgments for those who argue contrary to the Law of the Constitution that the European Communities Act 1972 is entrenched. The extraordinary and quite unconstitutional (with great respect) suggestion, extra-judicially, by Lord Wilberforce in 1966 to the effect that 'constitutional’ statutes such as the Act of Union with Ireland 1800 could be entrenched in part by being made safe from Implied Repeal (see Bennion at 205) was not considered or followed by the Court of Appeal and rightly so (it was a notorious comment and the judges must have been aware of it). One may as well say that the devolution legislation is entrenched. (Again with the utmost respect Lord Wilberforce's other foray into constitutional law, being his speech in Zamir V Secretary of State for the Home Department [1980] AC 930, was equally disastrous, Zamir being rapidly and rightly reversed - see Khawaja and Khera -V- Secretary of State for the Home dpartment [1984] AC 74)
13. Ill-considered as it was the Firearms Act 1997 was
nonetheless law and overrode the Bill of Rights, notwithstanding the
moral and intellectual superiority of the Parliament of 1688 over that
of 1997. The mischief was not the weakness of statutory controls over
small-bore firearms, which Hamilton did not use to commit the murders
(Cm 3386, para.l.3) but the failure of Central Scotland Police to
enforce the existing law. A statute is valid law however, useless and
unnecessary though it might be. The answer to such legislation is to
repeal it.
14. To use the helpful (with respect) terminology of Henry LJ,
Parliament, which made the European Communities Act in 1972, unmade it
in part in 1985 when it enacted legislation contrary to the law of the
European Communities. As Popplewell J. explained Parliament is so
powerful that it need not name or refer to the instrument it is
overruling, or go t the lengths of one of King Richard III's
Parliaments which provided (see Bennion, at 201) that an earlier Act
was to be "annulled and utterly destroyed, taken out of the Roll
of Parliament, and be cancelled and burnt, and be put in perpetual
oblivion,” although this could be a useful precedent for when the
European Communities Act 1972 is repealed. Nothing could be less
relevant than the failure to mention the 1972 Act or Directive
80/181/EEC in the Weights and Measures Act 1985. So much of community
law that related to metric weights and measures simply ceased to be
part of "the corpus juris or body of 1aw” (ibid) in the United
Kingdom once Her Majesty gave Her Royal Assent to the 1985 Act.
15. Perhaps no-one should be surprised that Parliament tore up an EEC
Directive in 1985. Unlike 1972 the country had the benefit of strong
leadership, with a Prime Minister of international stature at the
height of her powers. Whilst in 1972 we were in decline by 1985
our glorious Armed Forces had performed a magnificent feat of arms in
the South Atlantic. Morale was high, boosted by the return of
prosperity. The successful alliance with America was winning the Cold
War with the Soviet without, it must be said, much help from the EEC.
The Anglo-European relationship was already falling apart.
16. In reply to those who have observed that the lesson of
Factortame (which was of course a series of decisions) is that the
courts may defy Parliament with impunity it should be pointed out that
the Parliament of the United Kingdom is the most powerful in the
world, with mighty reserve powers, normally only exercised in time of
national emergency. It is a legislature of unlimited competence, save
that it cannot bind its successors, who are of equal competence. Its
aegis is global - as recently as 1982 Parliament passed an Act with
legal effect in Canada (at Canada's request of course). It is not
bound by international law, indeed numerous statutes have breached
treaty obligations without anyone ever calling their validity into
question. It may pass retrospective legislation and laws with
extra-territorial effect and has the power of life and death. It may
authorise torture, for example in the case of Guy Fawkes who in 1606
was subjected to extreme torture prior to execution, on the authority
of Parliament, no doubt as an example.
17. No court of law may inquire into the validity of an
Act of Parliament (entirely different considerations apply of course
to secondary legislation, made not by Parliament but by delegates such
as ministers or local authorities, which even a magistrates court may
hold to be invalid - see DPP -V-Hutchinson [19903 2 AC 783). This
principle extends to the European Court of Justice, whose authority in
the United Kingdom is derived solely from Parliament. Under the
reference procedure used twice in Factortame, firstly by the
Divisional Court on the substantive issue and secondly by the House of
Lords on the issue of interim relief, using what was then Article 177
of the Treaty of Rome (see now Article 234), the Luxembourg court
simply provides an opinion on community law. Not only is the court not
competent to overturn an Act of Parliament (only Parliament can do
that) but the community provision concerned can only take effect in
this jurisdiction if it is backed by an Act of Parliament. As I
explained in my opinion that is not this case because the 1985 Act
stands in the way.
18 The authority of Parliament remains unaffected by the
Factortaime decisions. With the Utmost possible respect to the judges
concerned the High Court of Parliament has full constitutional
authority not only to remove them from office for misconduct but to
order them to be taken into custody and tried at Bar, indeed
Parliament could if it so wished provide for the judges of the
European Court to be tried in England for committing an act of
interference in the internal affairs of the United Kingdom in
violation of the principle of comity of nations In 1996 The House of
Commons gave a First Reading to a Bill, the Fishery Limits Bill,
Clause 11(9) of which provided for penal sanctions against judges of
the Luxembourg Court should they seek to interfere with the operation
of the Act. Prior to Factortame the last judicial officer in England
seriously to question the authority of the King in Parliament was Sir
Thomas More, who was very properly executed in 1535.
19. The suggestion that our Sovereign Parliament was in
effect nothing more than a puppet legislature and that one of its
statutes was invalid was as offensive as it was unconstitutional, with
immense respect to the judges concerned. I make no suggestion however
that it would be appropriate in this case for penal or other sanctions
to be visited, although it is of course entirely a matter for
Parliament.
20. These observations are I think a complete answer to the
points taken in the ‘e’-mails supplied by those instructing me.
Whilst this is not the place for a detailed treatment of the subject
of leaving the EU I cannot leave the material provided to me without
respectfully correcting the misleading impression given in the
electronic extract from Hansard (House of Lords, 12th May 1999,
Baroness Symons) to the effect that negotiations to leave the EU would
"be extremely complicated" and that "UK and EU law are
intricately interlocked.” The reality is that EU law is not organic
and has been superimposed, sometimes clumsily. There is nothing
complicated about leaving the European Union. It could be accomplished
by a short Act of Parliament with transitional arrangements, providing
say for regulations based on EU instruments to be replaced by negative
resolution procedure over a two-year period where necessary (not all
EU law is bad).
21. With respect I do not know from whence the Minister gets her idea
that "detailed and protracted negotiation" would be
necessary. The United Kingdom is already a State Party to the GATT
and. WTO agreements and trade with EU member states could simply be
conducted under the auspices of the WTO, with no/low tarriffs and
independent and tested machinery for dispute resolution. Unilateral
termination of the single European Act and the Treaties of Maastricht
and Amsterdam is governed by Sections 2 and 3 of the Vienna Convention
on the Law of Treaties, which entered into force on 27th. January
1980. The Convention (Article 62 of which provides for termination in
the event of a fundamental change of circumstances) was based on and
is broadly reflective of existing practice and I see no objection to
extending it to the Treaty of Rome, there being a non-retroactivity
clause in the Vienna Convention itself (Article 4). The United Kingdom
would also be able to invoke the jus cogens, in particular the
fundamental doctrine of the inalienable right of all states and
peoples to self-determination, confirmed by various treaties and
declarations including the Charter of the United Nations, to which all
member states of the EU are signatories Of course we could
leave by agreement, but unilateral termination would be simpler and
quicker. There could be no international legal challenge because the
jurisdiction of the ICJ is already ousted and a fortiori the ECJ's
authority would no longer be recognised by the UK.
22. Of course I would be only too willing to provide further
clarification if requested. Those instructing me were kind enough to
arrange for me to appear on television to discuss the general
principles. I have no objection to further television appearances but
in accordance with the usual practice if a prosecution is commenced
and I am instructed either by the prosecution or the defence it would
no longer be right to accept such invitations. I should add that I
took the precaution of consulting the Bar Council before the broadcast
and have acted in accordance with their entirely sensible guidelines.
There it is. I advise accordingly
Michael Shrimpton~ Esg.
Dated this 23rd day of January in the Year 2000.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Produced in electronic format (e&oe) by: GlanceBak@aol.com(Greg Lance-Watkins) ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ If you require a copy of this ‘e’mailed to anyone (your solicitor etc.) please contact: GlanceBak@aol.com ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ If you require assistance obtaining a solicitor to defend a case Please contact: GlanceBak@aol.com Good luck & if I can help you in your efforts in defence of the British peoples and our Nation or the rights and freedoms of any peoples against the EU, NAFTA, WTO, IMF, OWG, NWO etc. please just ask. Do visit our shop, if you are ever in the area, we are open from 10.30ish. till 5.30pm., 6 days a week.
Regards,
Greg
Greg Lance - Watkins,
The Welsh Assembly, c/o Glance Back Books, 17 Upper Church Street, CHEPSTOW, NP16 5EX Monmouthshire, Britain.
'e'mail Greg@GlanceBack.demon.co.uk
tel: 01291 - 626562 fax: 01291 - 628787 See the Web Sites: METRICATION a full legal 'Opinion' http://www.silentmajority.co.uk/eurorealist & CHALLENGE to Politicians of Stature http://www.silentmajority.co.uk/eurorealist/Challenge.html UKIP web site www.ukip.org |
